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Jensen v Police

Jensen v Police

Case [2020] NZHC 726 8 April 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-0005

[2020] NZHC 726

BETWEEN
HIRA JENSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 March 2020

Appearances:

S J Galler for Appellant J Kang for Respondent

Judgment:

8 April 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 8 April 2020 at 12.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: S J Galler, Auckland

JENSEN v POLICE [2020] NZHC 726

[1] The appellant, Mr Jensen, appeals against a sentence of two years, nine months’ imprisonment imposed by Judge Collins on 19 November 2019.1

[2] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5

Background

[3] Mr Jensen was for sentence on the following charges, committed on the dates shown:

(a)burglary — 5 July 2016;6

(b)robbery — 5 July 2016;7

(c)failing to answer police bail — 29 August 2016;8

(d)common assault (x 2) — 10 December 2016;9

(e)wilful damage — 10 December 2016;10

(f)failing to answer District Court bail (x 4) — June 2016, December 2016 (x 2), and January 2017;11

1      Police v Jensen [2019] NZDC 23914.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 3, at [30]–[35].
5      Tutakangahau v R, above n 3, at [36].
6      Crimes Act 1961, s 231. The maximum penalty is 10 years’ imprisonment.
7      Section 234. The maximum penalty is 10 years’ imprisonment.
8      Bail Act 2000, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.
9      Crimes Act, s 196. The maximum penalty is 1 years’ imprisonment,
10     Summary Offences Act 1981, s 11. The maximum penalty is 3 months’ imprisonment or a fine of
$2,000.
11     Bail Act, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.

(g)resisting police — 24 February 2017;12 and

(h)escaping lawful custody — 24 February 2017.13

[4] The burglary was of a residential address, with no forced entry. The sole (female) occupant was not home at the time, and Mr Jensen gained entry through an unlocked door or window. Once inside, Mr Jensen stole a television and an “igloo” box from the woman’s bedroom (never recovered), and then spat on the wall. It was this which ultimately led to Mr Jensen’s identification.

[5] Mr Jensen then committed the robbery…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jensen v Police

Details

AGLC: Jensen v Police [2020] NZHC 726
Case: [2020] NZHC 726
Decision Date: 8 April 2020

CaseChat Overview and Summary

Jensen appeals against a sentence of two years and nine months' imprisonment imposed for burglary, robbery, failing to answer bail, common assault, wilful damage, resisting police, and escaping lawful custody. The Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed. The Court must be satisfied the sentence is manifestly excessive or wrong in principle. The focus is on the end sentence, rather than the process by which the sentence was reached. Counsel for Jensen contends the sentence was manifestly excessive because the uplifts were excessive; there should have been a discount for youth; and the discount for Jensen's guilty pleas was insufficient. Counsel for the Crown contends the end sentence was within range and there is no basis for interfering with it on appeal.

The Court accepts the Judge's uplift for the burglary was too high and should have been 14 or 15 months' imprisonment. Having regard to the gravity of the offending as a whole, a starting point of no more than three years' imprisonment would have been proportionate. The Court accepts Jensen was eligible for a discount for youth, given his age at the time of the offending. Much of the offending was impulsive and spontaneous. An offender's prior history, whether in the Youth Court or District Court, does not preclude a discount and, in fact, is irrelevant. The Court accepts Jensen has the potential to refrain from offending and therefore to rehabilitate. The impact on Jensen of a lengthy sentence of imprisonment would be disproportionately severe, even if warranted for an adult offender. The Court is satisfied a discount for youth ought to have been given. The Court accepts there was no error on the part of the Judge in relation to the discount for Jensen's guilty pleas. A discount of 15 per cent was the most Jensen could reasonably expect in those circumstances.

The Court allows the appeal. The sentence imposed on the charge of robbery committed on 5 July 2016 is varied from two years, nine months' imprisonment to two years, three months' imprisonment. All other sentences remain unchanged.

Orders